Delhi District Court
Shri Deepak Thirwani vs Shri Lachman Das Mansharmani on 30 September, 2014
IN THE COURT OF SHRI LALIT KUMAR : ADJ 01: SOUTH EAST :
SAKET COURTS : NEW DELHI
RCA - 05/14
1. Shri Deepak Thirwani
S/o. Sh. G.D. Thirwani
2. Smt. Madhu Thirwani
W/o. Sh. Deepak Thirwani
Both R/o. 6/35, First Floor
Vikram Vihar, Lajpat NagarIV
New Delhi - 110024.
.......Appellants
VERSUS
Shri Lachman Das Mansharmani
S/o Late Sh. Sewa Mansharmani
R/o. 4/19, Ground Floor
Vikram Vihar, Lajpat NagarIV
New Delhi - 110024.
........Respondent
Date of institution of Appeal : 17.05.2014
Date of Reserving order : 23.09.2014
Date of Order : 30.09.2014
ORDER
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1. Vide this Order, I shall dispose off first appeal under Section 96 and Order 41 Rule 1 CPC.
2. The present appeal is preferred against the judgment and decree dated 05.04.2014 passed by the Court of Sh. Dinesh Kumar, Civil Judge (SE), New Delhi in Suit no. 778/2013 titled as Deepak Thirwani & Anr. Vs. Lachman Das Mansharmani.
3. The brief facts of the present appeal are that Appellants filed a suit for possession and damages/ mesne profits against respondent contending that respndent was a tenant in the suit premises under Appellants at a monthly rent of Rs. 3543.10. Tenancy of respondent was terminated vide termination notice dated 27.01.2012. However despite termination notice, Respondent failed to vacate the suit premises. As such Appellants were constrained to file a suit for possession as well as damages / mesne profits @ Rs. 30,000/ per month against respondent. It is further submitted that during the pendency of the said suit, a decree of possession was passed by Hon'ble High Court of Delhi in RCA - 05/2014 Deepak Thirwani Vs. Lachman Das Mansharmani Page 2 / 10 its revisional jurisdiction and the said order was affirmed by Hon'ble Supreme Court. It is further submitted that Respondent filed its Written Statement controverting claim of the Appellants regarding possession as well as mesne profits. Parties led their evidence on both the issues, however the present appeal is confined only to issue of mesne profits which was framed by Ld. Trial Court on 24.05.2013 and read as under :
"Whether the plaintiff is entitled for mesne profits @ Rs. 30,000/ per month? OPP.
4. The appellants led their evidence through Appellant no.1 and proved certain documents. The respondent also examined himself as RW1. The arguments were addressed by the parties. Vide impugned judgment, Ld. Civil Judge denied the claim of Appellant of Rs. 30,000/ per month qua damages / mesne profits. Ld. Civil Judge opined that Appellants had failed to prove mesne profits and as such awarded damages / mesne profits at a meagre amount of Rs. 3543.10 per month i.e. existing rate of rent. Aggrieved by said judgment, the appellants have filed the present appeal on the ground that impugned order suffers from illegality RCA - 05/2014 Deepak Thirwani Vs. Lachman Das Mansharmani Page 3 / 10 and gross nonapplication of mind and is liable to be modified / set aside. It is also submitted that appellants have not preferred any other appeal against the impugned judgment and decree dated 05.04.2014. It is prayed to pass a decree of damages / mesne profits in favour of Appellants and against Respondent @ Rs. 30,000/ per month in terms of relief claimed by the Appellants.
5. I have heard the arguments and have perused the relevant record.
It is argued by the Ld. Counsel for the appellant that Ld. Presiding Officer of the Trial Court has totally overlooked the facts of the case and fell into gross judicial error while appreciating the evidential value of documents which were relied upon by the plaintiff before the Ld. Trial Court. It is argued by the plaintiff that while giving the finding by the Ld. Trial Court, documents Ex. PW1/11 to PW1/13 were totally overlooked. It is argued that these documents were not duly proved as no witness from Office of Sub
- Registrar had been summoned to prove the documents. It is further argued that Ld. Trial Court ignored the statement of Ld. Counsel for Respondent vide which the evidence of SubRegistrar RCA - 05/2014 Deepak Thirwani Vs. Lachman Das Mansharmani Page 4 / 10 was dispensed with formal proof of abovesaid documents. It is argued that this is a gross oversight on part of the Ld. Trial Court. It is further argued that the documents Ex. PW1/11 and Ex. PW1/13 were not considered and nonconsideration of these documents has led the Ld. Trial Court to give a wrong finding. It was misconceived by the Ld. Trial Court that these documents were related to a period after filing of the suit. It is argued that the suit was filed in February 2012 and was decided on 05.04.2014. The documents Ex. PW1/11 and Ex. PW1/13 pertains to the period July 2012 and January 2013 which is the period of pendency of the suit. It is argued by the plaintiff that it is not the case of any party that anything radical or drastic had happened between the aforesaid period which led to reduction of rent prevailing in the locality, where tenanted premises is located. It is argued that Ld. Trial Court refused to adjudicate the issue and shirked from its judicial responsibility.
6. On the other hand, Ld. Counsel for the respondent argued that Ld. Trial Court had taken every consideration before deciding the suit. It is argued that Hon'ble High Court as well as Hon'ble Supreme Court had held that amount of rent as well as the damages is Rs. RCA - 05/2014 Deepak Thirwani Vs. Lachman Das Mansharmani Page 5 / 10 3,543/ and appellant herein cannot ask more amount than the damages awarded by the Superior Courts. It is argued that Respondent herein has already handed over the possession of the suit premises to the appellant herein as per the direction of the Hon'ble Supreme Court, hence, he is not liable to pay the damages as asked by the appellant herein. It is further argued that Ld. Trial Court while deciding the suit had awarded damages @ 3,543/ only per month which is in accordance to the law.
7. I have considered the arguments raised before me by the Ld. Counsel for the parties and have also gone through the record carefully. Appellant herein had gone into appeal before Hon'ble High Court when the Ld. Trial Court had dismissed his application u/O 12 Rule 6 CPC. Hon'ble High Court of Delhi while allowing his appeal, directed the respondent herein to vacate the suit premises within 6 months from the date of that order. However, in para 13 of the Order, Hon'ble High Court clearly stated that mesne profits and damages shall be decided in accordance with law by the Ld. Trial Court. Aggrieved with this Order, the Respondent herein filed a Special Leave Petition before Hon'ble Supreme RCA - 05/2014 Deepak Thirwani Vs. Lachman Das Mansharmani Page 6 / 10 Court. Vide Order dated 10.12.2013, Hon'ble Supreme Court granted time upto 31.10.2014 to the respondent herein to handover the peaceful vacant possession of the suit property to the appellant herein. It is an admitted fact that the possession of the suit property has been handed over to the appellant herein. The issue which was to be decided by the Ld. Trial Court was only that whether the plaintiff / appellant herein was entitled for mesne profit / damages @ 30,000/ per month as prayed for in the suit. In support of his contention, appellant filed on record various lease deeds to show the prevalent market rent in the area. However, the same were not proved on the record as per the averments of the respondent herein as well as the Order of the Ld. Trial Court. Ld. Counsel for the appellant drawn my attention towards a ' No Objection' given by the Ld. Counsel for the respondent herein, which is just appended below the statement of PW1 dated 06.07.2013 which is as under : "I have no objection if the documents PW11 to PW13 are exhibited without any proof ". It is also seen that just below the abovesaid no objection, Ld. Counsel for appellant wrote down closing his evidence in affirmative.
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8. In para 13 of the impugned judgment, Ld. Trial Court stated that "
Ld. Counsel for the defendant has objected on exhibition of these documents as they have not been proved as per law. Executors of these documents have not been examined as a witness. Therefore, these documents remained not proved ." The finding of the Ld. Trial Court is contrary to the fact which is on the judicial record. Once, the witness for proving the documents Ex. PW1/11 to PW1/13 was dispensed with by giving no objection by the opposite party, the document can be treated as an admitted document which needs no formal witness to prove the same. It is seen that these documents are the certified true copies issued by the Office of SubRegistrar V, Mehrauli.
9. It would not be out of place to mention that to prove the fact with regard to the prevalent market rent, the appellant/plaintiff had filed list of witnesses mentioning the concerns officials of SDM Office to prove Ex. PW1/11 to PW1/14. It is pertinent to mention that DW1 i.e. Respondent / Defendant himself in his cross examination dated 01.08.2013 has admitted while deposing that RCA - 05/2014 Deepak Thirwani Vs. Lachman Das Mansharmani Page 8 / 10 rent of the suit premises would be around Rs. 20,000/ to 25,000/. Moreover, in the crossexamination, no question has been put to PW1 with regard to prevailing market rent as alleged by the Appellant/plaintiff in his affidavit in lieu of evidence, particularly, fact mentioned in para no. 15 and 16, mere suggestion has been made, which is no help to the defendant /respondent. It may be seen that in view of the NOC with regard to prove the requisitioned lease deed containing prevailing market rent at the relevant time from which damages / mesne profits have been claimed, find mentioned more than Rs. 30,000/ .
10.It is also seen that these lease deeds pertains to the year 2013 when the suit was pending before the Ld. Trial Court. It is nowhere argued that there was a radical or drastic change in the rent between February 2012 to April 2014. Even if, it is so, this is beyond any stretch of imagination that the rent of a property measuring 127.66 sq.yds. situated at Lajpat Nagar which is a prime locality, fetch a nominal rent of Rs. 3,543/ per month only.
11.By going through the abovesaid averments and records as well as RCA - 05/2014 Deepak Thirwani Vs. Lachman Das Mansharmani Page 9 / 10 arguments raised before me, it seems that Ld. Trial Court has overlooked the fact with regard to proving of the documents which were not required to be proved in lieu of the 'No Objection' given by the Ld. Counsel for the Respondent herein. Consequently, the appeal is allowed and matter is remanded back to the Ld. Trial Court for adjudication qua the relief of damages and mesne profit in accordance with law. Appeal file be consigned to record room. Trial Court record be sent back alongwith copy of this order.
(Announced in open (LALIT KUMAR)
Court on 30.09.2014) ADJ01: South East District
Saket , New Delhi
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RCA 05/2014
30.09.2014
Present : Proxy Counsel for the Appellant
Vide separate judgment, the appeal is allowed and matter is remanded back to the Ld. Trial Court for adjudication qua the relief of damages and mesne profit in accordance with law. Appeal file be consigned to record room. Trial Court record be sent back alongwith copy of this order. Parties are directed to appear before the Ld. Trial Court on 30.10.2014.
(LALIT KUMAR) ADJ01: South East District Saket , New Delhi RCA - 05/2014 Deepak Thirwani Vs. Lachman Das Mansharmani Page 11 / 10